VOLUME 2 FALL 2013 NUMBER 1 NLUJ Law Review ARTICLES State Courts and State Responsibility: A Response to Prof. Prabhash Ranjan’s “Can BIT claims be made against India for the actions of the Indian judiciary?” Harisankar K. S. A Critique of the Indian FDI Law and Policy: Problems & Solutions Ajay Kr. Sharma Rethinking Rape: Should the Law Still Confine to the Paradigm? Joshita Jothi, Keshavdev J. S The Right Against Self-incrimination and State of Bombay v. Kathi Kalu Oghad: A critique Shivani Mittal To Ban or Balance: Children as ‘Hands’ and Popular Cinema Nidhu Shrivastava The Responsibility to Protect (“R2P”) in International Law: Protection of Human Rights or Destruction of State Sovereignty? Astha Pandey BOOK REVIEW The Right to Information in India (Sudhir Naib, Oxford University Press: New Delhi, 2013) Abhinav Kumar, Prakhar Bhardwaj VOLUME 2 FALL 2013 ISSUE 1 NLUJ L R AW EVIEW PATRON Prof. Poonam Saxena FACULTY ADVISORS Dr. Souvik Chatterji EDITOR-IN-CHIEF Abhipsit Mishra MANAGING EDITOR SENIOR ASSOCIATE EDITOR Yuvraj Samant Tanvi N. S. ASSISTANT MANAGING EDITOR Kriti Wattal ASSOCIATE EDITORS Kruthika Prakash Ashwini Tallur Chinmay Deshmukh Aditi Bajaj Ishita Kumar COPY EDITORS Akarshi Jain Sourish Saha Aditya Gupta Akhil Sharma Ankeeta Parhi The Editor-in-Chief would also like to thank Saahil Dama for his generous help. VOLUME 2 FALL 2013 ISSUE 1 NLUJ L R AW EVIEW TABLE OF CONTENTS EDITORIAL Saving Private Review: Reflections on the Law Reviews of Today Abhipsit Mishra……...……………………………………………………1 ARTICLES State Courts and State Responsibility: A Response to Prof. Prabhash Ranjan’s “Can BIT claims be made against India for the actions of the Indian judiciary?” Harisankar K. S…………………………………………………………16 A Critique of the Indian FDI Law and Policy: Problems & Solutions Ajay Kr. Sharma………………………………………………...……….30 Rethinking Rape: Should the Law Still Confine to the Paradigm? Joshita Jothi, Keshavdev J. S. ...…………………………………………….56 The Right Against Self-incrimination and State of Bombay v. Kathi Kalu Oghad: A critique Shivani Mittal………………...………………………………………….75 To Ban or Balance: Children as ‘Hands’ and Popular Cinema Nidhu Shrivastava………………………………………………………..94 The Responsibility to Protect (“R2P”) in International Law: Protection of Human Rights or Destruction of State Sovereignty? Astha Pandey……………………………………………….…………..115 BOOK REVIEW The Right to Information in India (Sudhir Naib, Oxford University Press: New Delhi, 2013) Abhinav Kumar, Prakhar Bhardwaj………………………………………127 NLUJ Law Review Abhipsit Mishra, Saving Private Review: Reflections on the Law Reviews of Today, 2(1) NLUJ Law Review 1 (2013) SAVING PRIVATE REVIEW: REFLECTIONS ON THE LAW REVIEWS OF TODAY ABHIPSIT MISHRA* TABLE OF CONTENTS I. INTRODUCTION ............................................................................................................ 1 II. THE CRITICISM ............................................................................................................. 3 A. IRRELEVANCE ................................................................................................................. 3 1. THE POSSIBILITY OF RELEVANCE ................................................................................................... 4 2. MISPLACED FOCUS ............................................................................................................................ 5 B. STYLE: TRY HARDER TO BE EASY................................................................................... 5 1. TURGID PROSE ................................................................................................................................... 5 2. LENGTH .............................................................................................................................................. 6 3. LOSING THE HUMAN TOUCH .......................................................................................................... 7 4. FOOTNOTE FETISH ........................................................................................................................... 7 C. PROCEDURAL PREDICAMENTS ........................................................................................ 8 1. ADOLESCENT EDITING .................................................................................................................... 9 2. GOING THE WEB WAY ..................................................................................................................... 9 3. THE PRESTIGE ................................................................................................................................. 10 III. LEONIDAS’ ARMY .................................................................................................... 11 A. THE NATURE OF ACADEMIC WRITING ......................................................................... 11 1. TARGET AUDIENCE ........................................................................................................................ 11 2. RELEVANT FIELDS .......................................................................................................................... 12 B. VICTIMS OF CIRCUMSTANCES........................................................................................ 12 1. TENURE COMMITTEES .................................................................................................................... 12 2. PEER PROBLEMS: EDITORS V. RESPONDERS ............................................................................... 13 IV. CONCLUSION ........................................................................................................... 13 * Editor-in-Chief, NLUJ Law Review, B.P.Sc. LL.B. (Hons.), National Law University, Jodhpur, INDIA. Email: abhipsit[at]gmail.com. 1 NLUJ Law Review [Vol. 2:1 I. INTRODUCTION “Occasionally, very occasionally, a bit of heavy humor does get into print. But it must be the sort of humor that tends to produce, at best, a cracked smile rather than a guffaw. (…)The best way to get a laugh out of a law review is to take a couple of drinks and then read an article, any article, aloud. That can be really funny.” - Fred Rodell, GOODBYE TO LAW REVIEWS, Virginia Law Review “Whereas most periodicals are published primarily in order that they may be read, the law reviews are published in order that they may be written.” Harold C. Havinghurst, LAW REVIEWS AND LEGAL EDUCATION, N.W.L. Rev. The most prominent and widely circulated law review, the Harvard Law Review (HLR), has seen its readership decline drastically. From a total number of 10,895 subscribers in 1963-64, the subscriber base for 2010-11 stands at a mere 1,896.1 If that be the case with the HLR, legal scholarship indeed faces an existential crisis. Too many people are asking too many questions. Some of them,2 are ringing the death knell for what has allegedly become of these law reviews: bulky bastions of esoteric legal erudition. Others meanwhile are almost melancholically asking for a reinvention which would rejuvenate legal academia.3 The study of law, as the study of any profession poses a unique challenge. The study of the profession cannot be isolated from its practice. For example, while analysing the different schools of thought on the jurisprudence of ‘rights’ is important (academic), it is also important for people 1 Walter Olsen, Abolish the Law Reviews, THE ATLANTIC (July 5, 2012), available at http://www.theatlantic.com/national/archive/2012/07/abolish-the-law-reviews/259389/; For a compilation of the total paid circulation for flagship law reviews at ‘many fine schools’, see Ross E. Davies, The Increasingly Lengthy Long Run of the Law Reviews: Law Review Business 2012 – Circulation and Production, 3(2) JOURNAL OF LAW (2 JOURNAL OF LEGAL METRICS) 245-271 (2013). 2 Walter Olsen, supra note 1. 3 Nicholas Kristof, Professors We Need You, THE NEW YORK TIMES (February 15, 2014), available at http://www.nytimes.com/2014/02/16/opinion/sunday/kristof-professors-we-need-you.html?_r=0. 2 NLUJ Law Review [Vol. 2:1 to dedicate themselves towards developing a rights theory to decriminalise or criminalise consensual homosexual acts for those who support and oppose it respectively (practical). However, overemphasis on either is undesirable. While practice cannot develop in isolation from theory, stressing the study to the exclusion of practice can render any discipline devoid of much meaning. The evidence of this paradox can be seen in how academic growth is contingent not on the years of professional practice, but on PhDs and periodic publications. That sort of an attitude screams out loud the irony of entrusting the training of lawyers to those who were only too eager to leave the practice of law behind. The origin of law reviews can be traced to the 19th century when legal scholarship was more of a professional venture than an academic one.4 It used to serve a distinctly ‘relevant’ purpose in that it provided lawyers and judges a doctrinal analysis of a given subject area. For example, it would reconcile divergent lines of authority. On other occasions, it would bring to fore the evident contradiction over the same question of law by different courts. Sometimes, it would criticise a particular line of cases and provide an alternative approach that could be envisaged or even adopted at the appellate stage. Law reviews’ foundations therefore have been grounded in how it assisted the practice of law rather than just the study of law. However, they encompass a different set of utilities today. They are being read by people who are trying to remain at par with the developments in their field of academic or professional interest. Others are reading it to find answers to their specific research questions. For the inclined few, it is a source of recreation. While for others, it may be a source of getting a fair idea of subject areas outside their own specialisation. Students are probably reading articles to figure out how to author one. To each her own; people are finding their own reason to pick up a law review. However, the real question is, how many of us are really picking up a law review? We have at our disposal today, one of the most powerful tools that has thus far been deprived to every generation of the legal fraternity before ours: the World Wide Web. Compare the ease of a term search (Google search, or a ‘Ctrl+F’ on a webpage or a document), to the process of finding out the relevant law review (through word of mouth, prior 4 Richard Posner J., Against the Law Reviews, LEGAL AFFAIRS (December, 2004), available at http://legalaffairs.org/issues/November-December-2004/review_posner_novdec04.msp. 3 NLUJ Law Review [Vol. 2:1 citation, or sheer luck), and then within that issue, skimming through the table of contents or the index to find the relevant article, and then within that article, browsing to find the relevant portion which would satisfy the purpose for which we picked up the law review in the first place. But, this still merely questions the need to have printed law reviews. If law reviews are available online, we are still saved from the cumbersome process of finding what we are seeking. The larger question is, do we really need law reviews to begin with? They have allegedly become too long, too obscure, too irrelevant, and just plain difficult to read. While this needs a concrete data point to be persuasive, the Indian judiciary is rarely, if ever, giving a chance to legal scholarship to persuade it. One also wonders if much of the Indian legal scholarship is persuasive. Despite the above factors, which are going to be discussed subsequently, there has been an unprecedented proliferation of the journal culture. While this journal-population explosion does some good to the legal academia, the bad and the ugly of it (not just in India, but globally) is something that is slowly yet increasingly being noticed; raising doubts about the utility and viability of the law review. Admittedly, this editorial hopes to provoke rather than persuade. It has its limitations in being credible due to the lack of empirical data available regarding the Indian legal academic writing and generally, the impact of legal scholarship on the Indian judiciary. Nonetheless, I hope that it will provide a perspective on the circumstances that today’s law reviews exist in. I hope that it will interest the current and future editorial boards into deliberating about the course that NLUJ Law Review should take. Is it time for NLUJ Law Review to become web-only? Is it time for us to become more flexible about our style? How do we get practitioners, students, academicians, advocates, judges and even members outside the legal fraternity to read what we publish? A little soul searching is required. I only hope that this editorial initiates that. II. THE CRITICISM A. IRRELEVANCE The need for law reviews to remain practically relevant is for more than just intuitive satisfaction; it has a certain philosophical basis too. Law has been seen as the only alternative to 4 NLUJ Law Review [Vol. 2:1 force as a means of dispute resolution. Law displaced might. In doing that, it guaranteed to all individuals, rights which would never have been theirs to enjoy. If law loses that quintessence, we are headed towards the surrendering of every benefit that accrues to us through the rule of law. If we agree to that, let us test the law reviews of today at the anvil of how relevant they are. 1. THE POSSIBILITY OF RELEVANCE The effects of such practical relevance have been seen often in the USA.5 As far back as in 1980, the Californian Supreme Court made use of a law review article to determine individual liability in a tort claim.6 The claim was filed on behalf of the women afflicted with cancer whose mothers had taken a synthetic estrogen during pregnancy. The Court despite finding favour with the plaintiffs, could not find any authority to determine the liability of individual manufacturers. A student note in the Fordham Law Review came to the rescue by proposing the theory of market share liability. That became Californian law for the times to come. More recently, Ted Cruz, a junior senator from Texas and a Harvard alumnus raked up a controversy with his essay titled “Limits on the Treaty Power”.7 The essay ventured into the possible use of international treaties by a devious federal government to acquire a larger realm of jurisdiction for itself by chipping away at the states’ powers. While this essay did not affect a judicial decision (not yet!), it nevertheless hit at the heart of the American federal-constitutional structure. It was contemporary enough to generate a whirlpool of discussions. It was relevant. However, off late, that relevance seems to be fading. Arguers of the growing obscurity of law reviews have regularly quoted Chief Justice John C. Roberts Jr.’s remarks at the Fourth Circuit Judicial Conference held in 2011: “Pick up a copy of any law review that you see and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in eighteenth century Bulgaria, or 5 An analysis of how often Indian judges cite law reviews would probably make for an extremely interesting study. Concrete authorship on the same is severely lacking. 6 Sindell v. Abbott Laboratories, 26 Cal. 3d 588 (1980) (Supreme Court of California); Gerald F. Uelmen, Wit, Wisdom and Worthlessness, CALL A LAWYER (June, 2010), available at http://www.callawyer.com/clstory.cfm?pubdt=201006&eid=909875&evid=1. 7 Ted Cruz, Limits on the Treaty Power, 127 HARVARD LAW REVIEW F. 93 (2014), available at http://www.harvardlawreview.org/issues/127/january14/forum_1023.php. 5 NLUJ Law Review [Vol. 2:1 something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”8 Nicholas Kristof adds that academicians too often engage in technical debates at the cost of real ones.9 As proof, Kristof points (in a direction other than law) to the obliviousness of political scientists to the possibility of the Arab Spring. According to him, the failure to predict the same was a natural corollary of the recent absence of policy prescriptions by political scientists. 2. MISPLACED FOCUS An evergreen trend in legal writing has been to focus on cases dealt by the higher judiciary of a country. For example, law reviews will regularly carry pieces about an upcoming or a recently concluded case at a supreme court or a high court. Further, law reviews tend to concentrate more on the subject areas that these higher courts generally deal with such as constitutional law. However, this emphasis is disproportionate to the subject areas dealt with and judgments delivered by the lower courts. The need to make doctrinal contributions is in fact more at the lower courts where there is a plethora of divergent authority and no academic support to streamline the same. Nevertheless, the shower of arrows hurled at law reviews do not restrict themselves to the loss of this original purpose; that of being relevant to the practice of law. People are not just grieving the growing irrelevance of law reviews, they are also grieving what remains of it despite its irrelevance. B. STYLE: TRY HARDER TO BE EASY 1. TURGID PROSE One of the recent storm brewers in evaluating academia at large was Nicholas Kristof.10 He believes that the problem is due to a combination of multiple factors. According to him, academic disciplines have become more specialised and hence less accessible for the ordinary 8 John Roberts C.J., A Conversation with Chief Justice Roberts, Annual Fourth Circuit Court of Appeals Conference, C-Span (June 25, 2011) available at www.c-span.org/Events/Annual-Fourth-Circuit-Court-of-Appeals- Conference/10737422476-1/. 9 Nicholas Kristof, supra note 3. 10 Id. 6 NLUJ Law Review [Vol. 2:1 individual. Doctorate programmes encourage obscurity while disdaining impact and audience.11 To further aggravate the problem, the style of writing is akin to ‘turgid prose’. However, there are is a more diverse range of criticism when it comes to style; almost Miranda Priestly-esque. 2. LENGTH A while back, in 2004, the Harvard Law Review invited feedback from approximately 800 professors through a survey. The results of the survey showed that an overwhelming number (about 86%) of the respondents felt that law review articles are too long.12 This led to a declaration through a joint statement regarding articles length issued by 11 leading American law journals. It reflected the commitment of those journals to play an active role in moderating the length of law review articles.13 The survey’s respondents also advocated that the reduced length would have multiple advantages to the tune of enhancing the quality of the scholarship, simplifying the editorial process and making the articles more readable.14 However, truth be told, the optimum ‘length’ of an article is best not quantified. The keen and the inclined will not mind the length and should not be denied extensive analysis of a legal issue. Length is often the necessary evil for analysis. Assertions require few words; arguments, a little more. Accusations, anyone can make; proving them, only a select few. Of course, if the length is without purpose or utility, it takes away from the appeal of the article. Consequently, it should deservingly be edited or refused publication. 11 To back his allegations of the academia’s conscious effort to be obscure, Kristof points towards the Executive Council of International Studies Association’s proposal to ban its editors from blogging (seemingly because blogging prefers impact and reach to obscurity and pedantry). See Erik Voeten, Another Ill-conceived Attempt at Regulating Academic Blogging, WASHINGTON POST (January 28, 2014) available at http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/01/28/another-ill-conceived-attempt-at- regulating-academic-blogging/. 12 Law Review Usage Survey Results, HARVARD LAW REVIEW (July, 2005), available at http://www.harvardlawreview.org/law_review_usage_survey_results.pdf. 13 Joint Statement regarding Articles Length, HARVARD LAW REVIEW (February 9, 2005), available at http://www.harvardlawreview.org/PDF/articles_length_policy.pdf. 14 Id.